FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUHAIR KHATIB,
Plaintiff-Appellant,
No. 08-56423
v.
D.C. No.
COUNTY OF ORANGE, a political 8:07-cv-01012-
subdivision; MICHAEL S. CARONA, DOC-MLG
an individual; BRIAN COSSAIRT, an
OPINION
individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
December 13, 2010—Pasadena, California
Filed March 15, 2011
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Diarmuid F. O’Scannlain, Sidney R. Thomas,
M. Margaret McKeown, Raymond C. Fisher,
Ronald M. Gould, Johnnie B. Rawlinson, Richard R. Clifton,
Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge Gould
3587
3590 KHATIB v. COUNTY OF ORANGE
COUNSEL
Jennifer Mathis and Becki F. Kieffer, Troutman Sanders LLP,
Irvine, California; Mark D. Rosenbaum (argued) and Hector
O. Villagra, ACLU Foundation of Southern California, Los
Angeles, California, for the plaintiff-appellant.
David D. Lawrence (argued) and Christina M. Sprenger, Law-
rence Beach Allen & Choi, PC, Santa Ana, California, for the
defendants-appellees.
Conor B. Dugan (argued) and Gregory B. Friel, U.S. Depart-
ment of Justice, Washington, D.C., for amicus curiae United
States.
OPINION
McKEOWN, Circuit Judge:
Recognizing the significance of religious freedom in all
aspects of life, Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA” or “the
Act”) to “protect[ ] institutionalized persons who are unable
freely to attend to their religious needs and are therefore
KHATIB v. COUNTY OF ORANGE 3591
dependent on the government’s permission and accommoda-
tion for exercise of their religion.” Cutter v. Wilkinson, 544
U.S. 709, 721 (2005). RLUIPA prohibits state and local gov-
ernments from imposing “a substantial burden on the religious
exercise of a person residing in or confined to an institution”
unless the government demonstrates that imposing that bur-
den “is the least restrictive means” of furthering “a compel-
ling governmental interest.” 42 U.S.C. § 2000cc-1(a). The
term “institution” includes “a jail, prison, or other correctional
facility” and “a pretrial detention facility.” 42 U.S.C.
§ 1997(1)(B). We consider whether the Orange County Santa
Ana Courthouse holding facility, where every day hundreds
of individuals are detained in connection with court proceed-
ings, is an “institution” as defined by RLUIPA. We conclude
that this facility is such an “institution” under RLUIPA, and
thus the Act covers persons detained at the facility.
Our interpretation of the statute is guided by three princi-
ples. To begin, the focus of our inquiry is narrow and prelimi-
nary. The only question before us is whether Orange County’s
facility is an “institution” under RLUIPA; other courthouse or
detention facilities have unique characteristics that warrant
individualized review. Next, we are mindful that the issue of
accommodation—whether the substantial burden on religious
exercise is “the least restrictive means of furthering [a] com-
pelling governmental interest”—is distinct from the threshold
issue of whether the facility is a covered “institution” in the
first place. 42 U.S.C. § 2000cc-1(a). The accommodation
question involves serious practical considerations regarding
institutional safety, security, and the feasibility of accommo-
dation that are not before us now. Finally, Congress has
explicitly directed us to resolve any ambiguities in RLUIPA
“in favor of a broad protection of religious exercise, to the
maximum extent permitted.” 42 U.S.C. § 2000cc-3(g) (empha-
sis added). With this framework in mind, we turn to the back-
ground of the case.
3592 KHATIB v. COUNTY OF ORANGE
BACKGROUND
Souhair Khatib is a practicing Muslim. In accordance with
her religious beliefs, Khatib wears a hijab, or headscarf, cov-
ering her hair and neck when in public. Khatib and her hus-
band pled guilty in Orange County Superior Court to a
misdemeanor violation of California welfare law. The Khatibs
were sentenced to three years’ probation and ordered to com-
plete thirty days of community service.
Two days before the deadline for completing their commu-
nity service, Khatib and her husband appeared in Orange
County Superior Court to seek an extension. The court
revoked Khatib’s probation and ordered her taken into cus-
tody. Khatib was handcuffed and taken to the Santa Ana
Courthouse’s holding facility.
At the booking counter, a male officer ordered Khatib to
hand over her belongings and remove her headscarf. Having
her head uncovered in public, especially in front of men out-
side of her immediate family, is a “serious breach of [Kha-
tib’s] faith and a deeply humiliating and defiling experience.”
Weeping, Khatib explained that her religious beliefs forbade
her from taking off her headscarf and pleaded with the offi-
cers to allow her to keep it on. Khatib was warned that the
male officers would remove the headscarf for her if she did
not voluntarily do so. Wanting to avoid being touched by the
male officers—another violation of her religious beliefs—
Khatib reluctantly complied.
Khatib spent the majority of the day in a holding cell in
view of male officers and inmates. Experiencing “severe dis-
comfort,” “distress,” and “humiliat[ion],” Khatib attempted to
cover herself by pulling her knees into her chest and covering
her head with a vest she was wearing. At a hearing that after-
noon, the court reinstated Khatib’s probation and provided an
extension of time to complete community service.
KHATIB v. COUNTY OF ORANGE 3593
Khatib filed a complaint against the County of Orange, the
sheriff, and courthouse officers (“the County”), alleging,
among other things, violations of RLUIPA. The district court
dismissed Khatib’s RLUIPA claims on the ground that the
courthouse holding facility was not a covered institution
under the Act. The district court wrote at length about the
conditions in longer-term facilities and on the difference
between courthouse holding facilities and longer-term facili-
ties such as correctional centers and prisons. The court con-
cluded that because
an inmate’s stay in a courthouse holding facility is
generally temporary and transitory, . . . constant
movement within holding facilities makes unlimited
exercise of religious and expressive freedoms
impractical. Staff at such facilities do not have the
luxuries that make such freedoms feasible in longer-
term institutions, to which RLUIPA plainly applies.
As a result, the Court cannot conclude that Congress
intended . . . RLUIPA to apply to courthouse holding
facilities.
As we explain below, this exegesis about the practicality of
religious accommodation improperly merges two distinct
inquiries: whether the facility is an “institution,” and the gov-
ernment’s burden as to accommodation. Only the former
question is at issue in this appeal.
ANALYSIS
A. RLUIPA Overview
We apply well-established legal principles of statutory
interpretation. We begin, “as always,” with the text of the
statute. Duncan v. Walker, 533 U.S. 167, 172 (2001). We pre-
sume that Congress “says in a statute what it means and
means in a statute what it says there.” Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253-54 (1992). Thus, the plain mean-
3594 KHATIB v. COUNTY OF ORANGE
ing of a statute controls where that meaning is unambiguous.
See Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc.,
530 U.S. 238, 254 (2000).
[1] Section 3 of RLUIPA provides that
[n]o government shall impose a substantial burden
on the religious exercise of a person residing in or
confined to an institution, as defined in [42 U.S.C.
§ 1997], even if the burden results from a rule of
general applicability, unless the government demon-
strates that imposition of the burden on that person
(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of fur-
thering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). Thus, an individual must have been
“residing in or confined to” a covered “institution” to invoke
the protections of the Act. The key interpretive question is
whether Khatib meets this criterion.
[2] RLUIPA incorporates by reference the definition of
“institution” from the Civil Rights of Institutionalized Persons
Act of 1980 (“CRIPA”), 42 U.S.C. § 1997 et seq., which
defines the term to include “any facility or institution” that is
“a jail, prison, or other correctional facility [or] a pretrial
detention facility.”1 Under the ordinary, common meaning of
these terms, the Santa Ana Courthouse holding facility falls
within the definitions of “pretrial detention facility” and of
1
CRIPA’s legislative history is consistent with RLUIPA’s broad man-
date. According to the House Conference Report on CRIPA, “pretrial
detention facility” is a “generic term . . . intended to cover any institution
or facility which confines detainees who are awaiting or participating in
criminal trials.” H.R. Rep. No. 96-897, at 10 (1980) (Conf. Rep.),
reprinted in 1980 U.S.C.C.A.N. 832, 834. The term “jail or prison or other
correctional facility” is similarly broad and encompasses “those institu-
tions in which persons are wholly or partially confined or housed as part
of a criminal sanction or process.” Id.
KHATIB v. COUNTY OF ORANGE 3595
“jail.”2 See Perrin v. United States, 444 U.S. 37, 42 (1979)
(instructing that “unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning”). In reaching this conclusion, we begin with the
County’s own description of the facility.
B. The Santa Ana Courthouse Holding Facility
The best description of the Santa Ana Courthouse holding
facility comes from the Orange County Grand Jury Report, an
annual publication mandated by state law.3 The 2006-2007
report lists the courthouse facility as one of Orange County’s
adult jail facilities and describes it as follows:
COURT HOLDING FACILITY is a secure deten-
tion facility located within a court building used for
the confinement of persons solely for the purpose of
a court appearance for a period not exceeding 12
hours.
2006-2007 ORANGE COUNTY GRAND JURY, THE STATE OF
ORANGE COUNTY JAILS AND PROGRAMS 1 (June 7, 2007)
(“Grand Jury Report”). The facility is further described by the
County as a “labyrinth of sub-basements, tunnel[s], secured
elevators, and holding cells” through which approximately
600 inmates travel each day. Id. at 4. The facility holds indi-
2
Because there is no ambiguity in the statute and the plain meaning
compels our conclusion, we need not rely on RLUIPA’s generous rule of
construction in this case. However, to the extent there is any question as
to the statute’s applicability, Congress’s mandate that we construe the Act
in favor of “broad protection of religious exercise” to institutionalized per-
sons serves to reinforce our analysis. 42 U.S.C. § 2000cc-3(g).
3
See Cal. Penal Code § 919(b). Khatib submitted the 2006-2007 and
2007-2008 reports to the district court, along with a request to take judicial
notice. We construe the court’s incorporation of the reports into its order
as effectively taking judicial notice of the documents. See United States
v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (courts may take judicial
notice of public reports).
3596 KHATIB v. COUNTY OF ORANGE
viduals taken into custody at the courthouse as well as
inmates who are transferred from other facilities to appear at
court hearings or trial. Inmates brought into the facility are
“segregated by race, gang affiliation, criminal level of inten-
sity, and other characteristics to prevent trouble.” Id.
C. Whether the Facility is a “Pretrial Detention
Facility”
[3] The Santa Ana facility easily fits within the definition
of a “pretrial detention facility.” Because neither RLUIPA nor
CRIPA defines “pretrial detention facility,” we look to the
ordinary meaning of the words to define the term. See Perrin,
444 U.S. at 42. Detention is commonly understood as “a
period of temporary custody prior to disposition by a court.”
Webster’s Third New International Dictionary, Unabridged
616 (1993); see also Black’s Law Dictionary 514 (9th ed.
2009) (“detention” is “[t]he act or fact of holding a person in
custody; confinement or compulsory delay”). The most com-
mon definition of a “pretrial detainee” is an individual who is
held in custody pending adjudication of guilt or innocence.
See Bell v. Wolfish, 441 U.S. 520, 536-37 (1979). Pretrial
detention is simply the “holding of a defendant before trial on
criminal charges.” Black’s Law Dictionary 514. It is thus evi-
dent that the common, ordinary meaning of a “pretrial deten-
tion facility” is precisely what that phrase suggests: a facility
where individuals who are not yet convicted are held pending
court proceedings. To determine whether the Santa Ana facil-
ity falls within this definition we begin with the most logical
place—the County’s own characterization of the facility.
According to the 2006-2007 Grand Jury Report, the Santa
Ana facility is “a secure detention facility located within a
court building used for the confinement of persons.” Grand
Jury Report at 1 (emphasis added). The emphasized words in
this description are an exact match to the text of RLUIPA.
The facility’s main purpose is to temporarily hold individuals
who are awaiting court proceedings, including individuals
KHATIB v. COUNTY OF ORANGE 3597
awaiting trial.4 See id. (the facility is “for the confinement of
persons solely for the purpose of a court appearance”). Our
conclusion could hardly be clearer. Based on the plain mean-
ing of a “pretrial detention facility,” the Santa Ana Court-
house holding facility fits the bill. That Khatib was confined
to the facility is undisputed.
[4] The County argues that RLUIPA only affords protec-
tion to inmates at long-term facilities with residential capabili-
ties. This interpretation reads into the statute an additional
qualification where none exists. The Act does not include any
temporal restriction on the term “institution.” Nor should we
import such a requirement, especially in light of the generous
interpretative rule set forth by Congress.5 See United States v.
W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008) (en banc)
(where Congress expressly instructs that provisions of a stat-
ute shall be construed liberally, “we should not . . . read into
the statute an unwritten additional hurdle, even if well inten-
tioned”). RLUIPA plainly covers persons “residing in or con-
fined to an institution.” 42 U.S.C. § 2000cc-1(a) (emphasis
added). Had Congress intended to cover only long-term, resi-
dential facilities, it would not have enacted a provision that
4
The fact that Khatib herself was not technically a pretrial detainee
because she had already been adjudicated guilty is of no import. Coverage
under the statute does not hinge on the status of a particular individual or
plaintiff. Rather, the statute protects the religious liberty of individuals
who reside in or are confined to different types of “institutions.” Khatib
was without doubt “confined” to the Santa Ana Courthouse holding facil-
ity.
5
Specifically, 42 U.S.C. § 2000cc-3(g) states that “[t]his chapter shall be
construed in favor of broad protection of religious exercise, to the maxi-
mum extent permitted by the terms of this chapter and the Constitution.”
Although “this chapter” is a reference to RLUIPA, and an “institution”
(i.e., a “jail, prison, or other correctional facility,” or a “pretrial detention
facility”) is defined in CRIPA, a separate chapter, RLUIPA incorporates
CRIPA by reference. The question whether the principle of construction
set forth in § 2000cc-3(g) applies to statutory terms in CRIPA need not be
resolved here, however, because we can resolve this case without resorting
to RLUIPA’s interpretative rule.
3598 KHATIB v. COUNTY OF ORANGE
includes both “confined to” and “residing in.” See Mountain
States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237,
249 (1985) (it is an “elementary canon of construction that a
statute should be interpreted so as not to render one part inop-
erative”) (quoting Colautti v. Franklin, 439 U.S. 379, 392
(1979)); Duncan, 533 U.S. at 174 (“It is our duty to give
effect, if possible, to every clause and word of a statute.”)
(quoting United States v. Menasche, 348 U.S. 528, 538-539
(1955)) (internal quotation marks omitted).
The County’s further argument that “pretrial detention”
necessarily “lasts for a material and indefinite period of time”
is not borne out in either case law or the real world. “Pretrial
detention is by nature temporary,” Gerstein v. Pugh, 420 U.S.
103, 110 n.11 (1975), and in practice it often lasts for short
periods of time, see, e.g., Way v. County of Ventura, 445 F.3d
1157, 1158-59 (9th Cir. 2006) (defendant was arrested and
held at the Ventura County “pretrial detention facility” for
“several hours” before she was released on bail).
[5] In sum, we are unpersuaded by the County’s efforts to
redefine the nature of the Santa Ana facility and to insert a
temporal element into the statute. Based on the plain meaning
of the term “pretrial detention facility” and the Grand Jury
Report, the Santa Ana facility is an “institution” under
RLUIPA.
D. Whether the Facility is a “Jail”
[6] Although the Santa Ana detention facility best fits
within the definition of a “pretrial detention facility,” it also
falls within the definition of a “jail.”6 Like the term “pretrial
6
The United States appears in this appeal as an amicus curiae and, like
Khatib, urges us to hold that the Santa Ana Courthouse holding facility
meets the definition of both a “pretrial detention facility” and a “jail.” In
its brief, the United States underscored that “Congress intended the term
‘institution’ to have a broad and expansive meaning that easily encom-
passes the courthouse holding facility at issue in this case.” Amici Br. at
9.
KHATIB v. COUNTY OF ORANGE 3599
detention facility,” because “jail” is not defined in RLUIPA
or CRIPA, we turn to the dictionary. A “jail” is a “building
for the confinement of persons held in lawful custody (as for
minor offenses or some future judicial proceeding).” Web-
ster’s Third New International Dictionary, Unabridged 1208;
see also Black’s Law Dictionary 910 (“jail” is a generic term,
used to describe “[a] local government’s detention center
where persons awaiting trial or those convicted of misdemea-
nors are confined”).
[7] While RLUIPA requires us to “construe” it “in favor of
broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution,”
42 U.S.C. § 2000cc-3(g), we need not stretch the term “jail”
in the context of the Santa Ana Courthouse holding facility.
Looking yet again to the County’s own description of the
facility, a “secure detention facility . . . for the confinement
of persons solely for the purpose of a court appearance” falls
squarely within the ordinary, common definition of a “jail.”
Grand Jury Report at 1.
The County suggests that, in adopting an expansive defini-
tion of jail, all pretrial detention facilities would be subsumed
within the statute, with wide-ranging consequences. We are
not persuaded by this “sky is falling” logic. Our role is to
interpret the language as written, not to speculate as to the
breadth of potential coverage in a case down the road.
Under the statute, determining whether a facility is a cov-
ered institution is a question of function, not just labeling. It
would not be surprising to find functionally identical facilities
labeled as a jail in one jurisdiction and a pretrial detention
facility in another. Nor is it inconsistent that RLUIPA
employs the generic terms “jail” and “pretrial detention facili-
ty” in a flexible and somewhat overlapping manner to ensure
that a broad range of custodial facilities are brought within its
reach. This interpretation of RLUIPA’s coverage ensures
“broad protection of religious exercise, to the maximum
3600 KHATIB v. COUNTY OF ORANGE
extent permitted.” 42 U.S.C. § 2000cc-3(g) (emphasis added).
Yet the County would have us construe RLUIPA to categori-
cally exclude a pretrial detention facility that holds up to 600
inmates a day simply because it is located in the courthouse
and the inmates are confined there for relatively short periods.
We do not embrace such a restrictive interpretation in light of
the plain language of the statute and the clearly expressed
congressional intent.
E. The District Court’s Ruling
[8] In resolving the motion to dismiss, the district court
sidestepped the statutory analysis set out above, and instead
focused on the obstacles the Santa Ana Courthouse facility
would face in accommodating religious exercise by Khatib or
any other detainee. This approach put the cart before the
horse. Security and administrative concerns that could frus-
trate a facility’s ability to accommodate religious exercise do
not implicate whether that facility is an “institution.” Inserting
these concerns into the coverage prong of RLUIPA was error.
The district court should address such concerns at summary
judgment, when it considers whether the burden the County
imposed on Khatib was the least restrictive means of further-
ing a compelling government interest. See 42 U.S.C.
§ 2000cc-1(a); see also, e.g., Greene v. Solano County Jail,
513 F.3d 982, 988-89 (9th Cir. 2008) (addressing at summary
judgment the county’s argument that group worship was
impracticable at a maximum security facility because the
facility lacked appropriate resources to ensure safety).
[9] The district court also went astray when it reasoned
that short-term detention facilities must be excluded from
RLUIPA because short-term detainees cannot meet the
exhaustion requirement of the Prison Litigation Reform Act
(“PLRA”). No substantive provision of RLUIPA references
the PLRA; the district court’s theory has no basis in the text
of the statute. Further, the PLRA only requires exhaustion of
“administrative remedies as are available,” and thus
KHATIB v. COUNTY OF ORANGE 3601
expressly contemplates cases like Khatib’s where such reme-
dies do not exist. 42 U.S.C. § 1997e(a) (emphasis added).
Finally, inventing an extra-textual limitation on RLUIPA’s
coverage directly contravenes Congress’s instruction that
judges construe the statute in favor of “broad protection of
religious exercise.” 42 U.S.C. § 2000cc-3(g).
CONCLUSION
[10] The County’s argument reduces to the claim that
because the application of RLUIPA to the courthouse holding
facility is impractical and inconvenient the facility must not
fall within the Act’s definition of “institution.” But this
approach conflates RLUIPA’s coverage and accommodation
prongs. Congress certainly had real-world consequences in
mind when it enacted RLUIPA, and the text of the statute
indicates that it did not intend to minimize the serious security
and other management interests of institutions. It chose, how-
ever, to deal with accommodation issues as a second step in
the analysis, not by categorically excluding facilities like the
Santa Ana Courthouse holding facility from RLUIPA.
The County’s argument will not go unaddressed. RLUIPA
tasks courts with deciding, on a case-by-case basis, whether
the particular restrictions an institution imposes on the reli-
gious liberty of its inmates are justified. See 42 U.S.C.
§ 2000cc-1(a). Given the diversity of courthouse holding
facilities and inmate religious practices, such tailored adjudi-
cation accommodates the balance of religious freedom and
institutional order. As the Supreme Court wrote in Cutter,
“[s]hould inmate requests for religious accommodations
become excessive, impose unjustified burdens on other insti-
tutionalized persons, or jeopardize the effective functioning of
an institution, the facility would be free to resist the imposi-
tion.” 544 U.S. at 726. But, more importantly, regardless of
what we judges think, we are bound by the unambiguous lan-
3602 KHATIB v. COUNTY OF ORANGE
guage of the statute. RLUIPA plainly covers the Santa Ana
Courthouse holding facility.7
REVERSED AND REMANDED.
GOULD, Circuit Judge, concurring:
I concur. I agree with Judge McKeown’s opinion that the
Orange County Santa Ana Courthouse holding facility is a
“jail, prison or other correctional facility,” or “a pretrial
detention facility,” within the meaning of 42 U.S.C.
§ 1997(1). And I agree that if RLUIPA’s statutory coverage
is invoked, then the state still has the opportunity to justify
restrictions that further a compelling governmental interest
using the least restrictive means and that technically that issue
is not now before us. 42 U.S.C. 2000cc-1(a). However, I write
separately to emphasize an additional factor supporting our
decision that RLUIPA covers the Santa Ana facility.
In deciding the issue of coverage, we should not lose sight
of the reality that if RLUIPA does not apply, a Muslim
woman in custody loses an important statutory protection for
her religious preference to wear a hijab, a traditional
headscarf—a preference that Congress aimed to protect. It is
commonplace, and has been for centuries, to interpret
ambiguities in remedial statutes by considering three points:
“the old law, the mischief, and the remedy.” 1 William Black-
stone, Commentaries *87. We are to consider the preexisting
state of the law and what “mischief” Congress intended to
remedy when it enacted the remedial statute. “And it is the
business of the judges so to construe the act as to suppress the
mischief and advance the remedy.” Id. See also Nix v. James,
7
On appeal, Khatib also argues that the district court improperly con-
verted the County’s motion to dismiss into a motion for summary judg-
ment. In light of our decision, we need not address this issue.
KHATIB v. COUNTY OF ORANGE 3603
7 F.2d 590 (9th Cir. 1925) (holding that a remedial statute is
“entitled to a liberal construction”). When “words are dubi-
ous” and the meaning of a statute seems unclear, we may con-
sider the “reason and spirit” of the law. Blackstone at *60-61.
Such an approach is consistent with RLUIPA’s explicit com-
mand that we construe the statute “in favor of a broad protec-
tion of religious exercise, to the maximum extent permitted by
the terms of this chapter and the Constitution.” 42 U.S.C.
2000cc-3(g).
Doubtless Congress intended to safeguard the permissible
religious observance of powerless persons incarcerated by the
state. The legislative history of RLUIPA indicates that Con-
gress, in reaction to the Supreme Court’s decision in City of
Boerne v. Flores, 521 U.S. 507 (1997), sought to restore
where constitutionally permissible the protections of the par-
tially invalidated Religious Freedom Restoration Act
(“RFRA”). H.R. Rep. No. 106-219, at 5-12 (1999). Congress
heard testimony describing government facilities that regu-
larly denied individuals the right to exercise their religion.
That testimony included many examples of government facili-
ties that refused to accommodate religious practices, like
wearing religious headwear or eating a kosher diet, until those
facilities were “advised of the possibility of a lawsuit under
RFRA.” Id. at 10. This type of government restriction of reli-
gious observance “is the mischief which gives understanding
of the remedy.” People v. Westchester Cnty Nat’l Bank of
Peekskill, N.Y., 132 N.E. 241, (N.Y. 1921) (Cardozo, J., dis-
senting). It is clear from the legislative history that Congress
intended to reinstate RFRA’s protections against such restric-
tions when it passed RLUIPA.
A Muslim woman who must appear before strange men she
doesn’t know, with her hair and neck uncovered in a violation
of her religious beliefs, may feel shame and distress. This is
precisely the kind of “mischief” RLUIPA was intended to
remedy. A recognition of this very real harm helps inform our
judgment on the scope of covered institutions. Under long-
3604 KHATIB v. COUNTY OF ORANGE
observed canons of statutory construction, and under the
terms of RLUIPA itself, it is proper to construe the statute
broadly to give effect to the religious protection intended by
Congress.